August 10, 2009

The Bill of Federalism: Amendment #4

Carroll Andrew Morse

If I could choose a single amendment from the proposed Bill of Federalism to place into the US Constitution, it would be this one…

No treaty or other international agreement may enlarge the legislative power of Congress granted by this Constitution, nor govern except by legislation any activity that is confined within the United States.
In other words, if a proposal by the Executive branch, a Senator or a Congressman doesn't have the support it needs to pass through the regular lawmaking process, treaty-ratification cannot be used as an alternative mechanism for legislating. Allowing some government actions to short-circuit the law-making process and acquire the force of law, on the basis that deals cut between governments are entitled to a special consideration not given to measures fully deliberated by the representatives of the people, is an affront to the democratic legitimacy that forms the basis of self-government.

Georgetown University Law Professor Randy Barnett, author of the Bill of Federalism, offers these thoughts on the proposed Amendment…

The framers of the Constitution were profoundly wary of entangling the United States in international legal commitments, so they required two-thirds of the Senate to ratify all treaties, and they assumed that treaties would only reach matters of truly international concern. These principles have been subverted by several misinterpretations of the Constitution. First, the treaty power has been interpreted to reach every imaginable subject, including many subjects of purely local concern. Second, the treaty power has been interpreted as a mechanism to increase the legislative power of Congress, thus creating a doubly perverse incentive: an incentive to enter into new international legal obligations simply to attain increased domestic legislative power. This amendment would correct these errors and restore the original meaning of the Treaty Clause and the Supremacy Clause.

The earlier proposed amendments:

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May fortune smile on this effort.
I increasingly think that the federalism amendment is a sine qua non for any real reform discussion.

Posted by: smitty at August 10, 2009 12:52 PM

Governments perpetuate and grow themselves. That's what governments do. The original Commerce Clause etc. weren't ambiguous, they were simply warped over time and construed however the government wanted them to be construed, because the system is designed to allow and facilitate it. Even if the Bill of Federalism was passed and instituted, it would only be a matter of time before it was once again warped beyond all recognition.

Posted by: Dan at August 10, 2009 1:25 PM

Respectfully, I think you have misconstrued the point of Prof. Barnett’s proposal here. The issue addressed by this amendment relates to the substantive scope of federal power, not the process by which that power is exercised. This is so because the treaty ratification process requiring the advice and consent of two thirds of the senate makes it unlikely that a treaty will proceed to presidential signature and ratification unless, either the president’s party has an overwhelming majority in the senate, or there exists strong bi-partisan political support for the measure. Accordingly, it is unlikely that the treaty process can be used as a backdoor to advance policies for which there is little domestic political support (although in fairness, since at least the first world war, the executive has claimed the authority to reach binding ‘agreements’ with other nations that are implemented by executive order and do not require either congressional approval or senate advice and consent. These ‘agreements’ however are not justified on treaty power but on the executive’s power to control international relations – a power not explicitly granted by the constitution but justified by reference to the English crown’s authority over international relations for the realm and through a penumbral reading of those powers that are explicitly granted – the commander in chief power, the power to appoint and direct ambassadors, and the presidential portion of the treaty power)

Rather than seek to alleviate any concerns about short circuiting the law making process (which, for those dedicated to constitutional government is a critical concern in the era of the modern administrative state - don't have political support for a law, create an agency with a broad mandate and let the agency promulgate rules to the same effect) this amendment would seek to respond to the threat of creeping federal power over areas of liberty reserved to individuals or the states. There has been a long running debate in academia and the courts about the constitutional limits on the federal government’s treaty powers. Specifically, some academics suggest that the federal government may regulate areas otherwise beyond the reach of federal power. So, for example, during the United States Supreme Court struck down the guns free school zones act and the violence against women act because those acts were insufficiently related to the interstate commerce clause on which they were justified. Even though congress did not have the power to regulate those activities under the commerce clause, arguably, they could reach and regulate that activity through the ratification of a treaty. This amendment would seek to limit that practice and prevent that particular backdoor increase to federal power.

Posted by: Matt at August 11, 2009 10:14 AM
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